NY State Senate Bill 2011-S7395

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 07, 2012	referred to codes

2011-S7395 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§60.02, 70.06, 70.70, 70.02, 70.08, 70.10, 70.20 & 485.10, add §60.14, Pen L; rpld §410.91, amd §§220.10 & 220.30, CP L

2011-S7395 (ACTIVE) - Summary

Relates to sentencing.

2011-S7395 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7395

TITLE OF BILL:

An act
to amend the penal law and the criminal procedure law, in
relation to
sentencing
and to repeal certain provisions of the criminal procedure law relating
thereto

This measure is being introduced at the request of the Judiciary
upon the recommendation of the New York State Permanent Sentencing
Commission established by the Chief Judge.

This measure would amend provisions of the Penal Law and the
Criminal Procedures Law to simplify the State's increasingly
complex sentencing laws and to rectify anomalies in those laws.
In doing this, this measure incorporates recommendations of the
Temporary State Commission on Sentencing Reform in its January
2009 report.  It is not, however, a measure that is designed to
effectuate substantive or comprehensive sentencing reform.
While our Commission believes that
such reform would be desirable and hopes that this measure is a
necessary first step in that direction, the Commission understands
that now is the time to do no more than clean up the existing law to

free it of anomalies and obscure provisions that stand in the way of
implementation in accordance with legislative intent - and has
limited this measure accordingly.

The following will summarize the contents of this measure:

Section one amends Penal Law §60.02(2) to clarify the applicable class
E felony sentencing options for a youthful offender. When originally
enacted, there was only one set of sentencing options for a class E
felony. Since then, various other sets of options have been added
depending on whether the offender is a drug offender, sex offender,
or violet felony offender. As a result, for example, a youthful
offender of a drug felony may face a longer state prison sentence
than would be authorized for an adult. This provision continues the
full panoply of sentencing options for the youthful offender while
making
sure that any authorized state prison sentence be that which an adult
would be subject to. Also, for the youthful offender of a drug
felony, the "parole supervision" (drug treatment) sentence is
authorized; and, the restriction on the imposition of a conditional
or unconditional discharge is repealed as it was some years ago for
adults.

Section two transfers authorization for the "parole supervision" (drug
treatment) sentence from the Criminal Procedure Law to the Penal Law
article, which sets forth the applicable sentencing options for
offenses. Amendments are also made to clarify, without changing
current law, when the sentence is available.


Sections three, four, and five make conforming amendments to
provisions of the Penal Law which presently authorize the "parole
supervision" sentence.

Section six amends Penal Law §70.0(4) to authorize a definite sentence
of imprisonment for non-violent class C felonies, except those
specified in Penal Law §60.05(4). That amendment reasonably puts most
non-violent C felonies on a par with D and E felonies. Thus, for
example, the amendment avoids having to chose between state prison
and probation for a number of non-violent crimes when local jail or
local jail and probation is the appropriate sentence.

Section seven amends Penal Law §70.02(3)(c) to authorize a determinate
sentence of imprisonment range of 1.5 to 7 years, in lieu of a range
of 2 to 7 years, for a first time conviction of a class D violent
felony offense. For most class D violent felony offenses, a state
prison sentence is not mandatory for the first offender. At present,
the first offender may receive a one year definite sentence of
imprisonment or a two year state prison sentence. The amendment
allows for an intermediate sentence of 1.5 years in state prison.

Section eight cures a Penal Law omission by adding a paragraph to
Penal Law §70.08(3) to specify what the minimum period of
imprisonment must be for an indeterminate sentence of imprisonment
imposed for a class E persistent violent felony offender. That
minimum is set, as dictated by People v Tolbert, 93 NY2d 86 (1999),
to be not less than three years nor more than twenty-five years. The
maximum is currently set by statute at life imprisonment.

Section nine amends Penal Law §70.1O(2) to state specifically that the
sentence for a discretionary persistent felony offender is 15-25
years to life, as it has been since the inception of the current
Penal Law. The clarification is necessary because when initially
enacted the sentence was keyed to that of a class A felony and at
that time, there was only one class A felony sentence. Since then,
several different class A felonies have been enacted. It is thus
necessary to now specify the applicable sentence.

Section ten amends Penal Law §485.10(4) to conform the sentence for a
"hate crime" to the sentence of the separate crime of murder in the
second degree pursuant to Penal Law §125.25(5) (intentional murder
ofa child of less than fourteen while committing a sex offense),
namely, life without parole, when that murder is an element of the
"hate crime." Currently, the sentence for such "hate crime," which is
committed in conjunction with that murder and is thus a more serious
crime, is less than that authorized for the murder alone.

Sections eleven and twelve amend CPL §§220.10(5)(d)(ii) and
220.30(3)(b)(iv) to authorize, with the consent of the prosecutor and
the court, a plea to manslaughter in the second degree (a class C
felony) when the defendant is charged with manslaughter in the first
degree (a class B felony).

Section thirteen makes a technical amendment to Penal Law §70.20(4) to
allow for the commitment of a juvenile offender who, in accord with
section one of this measure, is accorded youthful offender treatment
and given a determinate sentence.


Section fourteen proscribes an immediate effective date and makes its
provisions applicable to offenses committed on or after the effective
date.

This act would have no fiscal impact.

LEGISLATIVE HISTORY:

New proposal.

2011-S7395 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7395

                            I N  S E N A T E

                               May 7, 2012
                               ___________

Introduced by Sen. SALAND -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Codes

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation  to sentencing and to repeal certain provisions of the crimi-
  nal procedure law relating thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 2 of section 60.02 of the penal law, as amended
by chapter 471 of the laws of 1980, is amended to read as follows:
  (2)  If the sentence is to be imposed upon a youthful offender finding
which has been substituted for a conviction for any  felony,  the  court
must  impose a sentence authorized to be imposed upon a person convicted
of a class E felony [provided, however, that the court must not impose a
sentence of conditional discharge  or  unconditional  discharge  if  the
youthful  offender  finding was substituted for a conviction of a felony
defined in article two hundred twenty of this chapter],  AS  HEREINAFTER
PROVIDED:
  (A)  IF  THE  YOUTHFUL  OFFENDER  FINDING WAS SUBSTITUTED FOR A FELONY
DEFINED IN ARTICLE TWO HUNDRED TWENTY OR TWO HUNDRED TWENTY-ONE OF  THIS
CHAPTER,  THEN  THE  SENTENCE SHALL BE AS AUTHORIZED BY SECTION 60.04 OF
THIS ARTICLE FOR A CLASS E FELONY, AND  IF  A  DETERMINATE  SENTENCE  OF
IMPRISONMENT IS IMPOSED, THE CORRESPONDING PERIOD OF POST-RELEASE SUPER-
VISION  PROVIDED  FOR THAT CLASS E FELONY BY SECTION 70.45 OF THIS TITLE
SHALL ALSO BE IMPOSED. IN ADDITION TO SUCH AUTHORIZED SENTENCES, IF  THE
DEFENDANT  MEETS THE REQUIREMENTS OF SUBDIVISION TWO OF SECTION 60.14 OF
THIS ARTICLE, A COURT MAY IMPOSE THE PAROLE SUPERVISION SENTENCE AUTHOR-
IZED BY THAT SECTION.
  (B) IF THE YOUTHFUL OFFENDER FINDING WAS  SUBSTITUTED  FOR  ANY  OTHER
FELONY,  THEN  THE  SENTENCE  SHALL BE AS AUTHORIZED BY SECTION 60.01 OF
THIS ARTICLE FOR A SENTENCE UPON  A  CONVICTION  OF  A  CLASS  E  FELONY
OFFENSE;  PROVIDED,  HOWEVER,  THAT IF THE YOUTHFUL OFFENDER FINDING WAS
SUBSTITUTED FOR A VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02  OF
THIS TITLE OR A FELONY SEX OFFENSE AS DEFINED IN PARAGRAPH (A) OF SUBDI-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD15293-01-2

S. 7395                             2

VISION ONE OF SECTION 70.80 OF THIS TITLE AND A SENTENCE OF IMPRISONMENT
IN EXCESS OF ONE YEAR IS IMPOSED TO BE SERVED IN A FACILITY OF THE STATE
DEPARTMENT  OF  CORRECTIONS  AND  COMMUNITY  SUPERVISION IS IMPOSED, THE
SENTENCE  SHALL  BE  THE DETERMINATE SENTENCE OF IMPRISONMENT AUTHORIZED
FOR A CLASS E VIOLENT FELONY OFFENSE OR FELONY SEX OFFENSE, AS THE  CASE
MAY  BE,  AND  THE  CORRESPONDING  PERIOD  OF  POST-RELEASE  SUPERVISION
PROVIDED FOR THAT CLASS E FELONY BY SECTION 70.45 OF THIS TITLE.
  S 2. Section 410.91 of the criminal procedure law is REPEALED.
  S 3. The penal law is amended by adding a new section 60.14 to read as
follows:
S 60.14 SENTENCE OF PAROLE SUPERVISION.
  1. DEFINITIONS.
  (A) AN "ELIGIBLE DEFENDANT" IS A PERSON WHO:
  (I) STANDS CONVICTED OF EITHER (1) A CLASS B FELONY DEFINED IN ARTICLE
TWO HUNDRED TWENTY OF THIS CHAPTER OTHER  THAN  THE  FELONY  DEFINED  IN
SECTION  220.48  OF  THIS  CHAPTER  AND  IS  SENTENCED  TO A DETERMINATE
SENTENCE OF IMPRISONMENT PURSUANT TO SUBDIVISION TWO OF SECTION 70.70 OF
THIS TITLE; OR (2) A CLASS C, D, OR E  FELONY  DEFINED  IN  ARTICLE  TWO
HUNDRED  TWENTY  OR  TWO  HUNDRED  TWENTY-ONE  OF  THIS  CHAPTER  AND IS
SENTENCED TO A DETERMINATE SENTENCE OF IMPRISONMENT PURSUANT TO SUBDIVI-
SION THREE OF SECTION 70.70 OF THIS TITLE; OR (3) A  NON-DRUG  SPECIFIED
FELONY  OR  FELONIES  AND  IS  SENTENCED TO AN INDETERMINATE SENTENCE OF
IMPRISONMENT PURSUANT TO SECTION 70.06 OF THIS TITLE; AND
  (II) STANDS CONVICTED OF NO OTHER FELONY OFFENSE; AND
  (III) HAS NOT PREVIOUSLY BEEN CONVICTED OF A CLASS A FELONY, A CLASS B
FELONY OTHER THAN A CLASS B FELONY DEFINED IN ARTICLE TWO HUNDRED TWENTY
OF THIS CHAPTER, OR A VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02
OF THIS TITLE; AND
  (IV) IS NOT UNDER THE JURISDICTION OF  OR  AWAITING  DELIVERY  TO  THE
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION.
  (B)  A "NON-DRUG SPECIFIED FELONY" IS A CLASS D OR E FELONY DEFINED BY
ANY OF THE FOLLOWING PROVISIONS OF THIS CHAPTER: BURGLARY IN  THE  THIRD
DEGREE  AS  DEFINED  IN  SECTION  140.20, CRIMINAL MISCHIEF IN THE THIRD
DEGREE AS DEFINED IN SECTION 145.05, CRIMINAL  MISCHIEF  IN  THE  SECOND
DEGREE  AS DEFINED IN SECTION 145.10, GRAND LARCENY IN THE FOURTH DEGREE
AS DEFINED IN SUBDIVISION ONE, TWO, THREE, FOUR, FIVE, SIX, EIGHT,  NINE
OR  TEN  OF SECTION 155.30, GRAND LARCENY IN THE THIRD DEGREE AS DEFINED
IN SECTION 155.35 (EXCEPT WHERE THE PROPERTY CONSISTS  OF  ONE  OR  MORE
FIREARMS,  RIFLES  OR  SHOTGUNS),  UNAUTHORIZED  USE OF A VEHICLE IN THE
SECOND DEGREE AS DEFINED  IN  SECTION  165.06,  CRIMINAL  POSSESSION  OF
STOLEN PROPERTY IN THE FOURTH DEGREE AS DEFINED IN SUBDIVISION ONE, TWO,
THREE,  FIVE  OR  SIX  OF  SECTION 165.45, CRIMINAL POSSESSION OF STOLEN
PROPERTY IN THE THIRD DEGREE AS DEFINED IN SECTION 165.50 (EXCEPT  WHERE
THE  PROPERTY  CONSISTS  OF  ONE  OR MORE FIREARMS, RIFLES OR SHOTGUNS),
FORGERY IN THE SECOND DEGREE AS  DEFINED  IN  SECTION  170.10,  CRIMINAL
POSSESSION  OF  A  FORGED  INSTRUMENT IN THE SECOND DEGREE AS DEFINED IN
SECTION 170.25, UNLAWFULLY USING SLUGS IN THE FIRST DEGREE AS DEFINED IN
SECTION 170.60, OR AN  ATTEMPT  TO  COMMIT  ANY  OF  THE  AFOREMENTIONED
OFFENSES IF SUCH ATTEMPT CONSTITUTES A FELONY OFFENSE.
  (C)  FOR THE PURPOSES OF THIS SECTION, THE TERM "PAROLE" SHALL INCLUDE
POST-RELEASE SUPERVISION AND THE TERM "PAROLEE" SHALL INCLUDE  A  PERSON
ON POST-RELEASE SUPERVISION.
  2.  A COURT MAY DIRECT THAT A DETERMINATE OR INDETERMINATE SENTENCE OF
IMPRISONMENT BE EXECUTED AS A SENTENCE  OF  PAROLE  SUPERVISION  IF  THE
COURT  FINDS  (A)  THAT THE DEFENDANT IS AN ELIGIBLE DEFENDANT; (B) THAT
THE DEFENDANT HAS A HISTORY OF CONTROLLED SUBSTANCE DEPENDENCE THAT IS A

S. 7395                             3

SIGNIFICANT CONTRIBUTING FACTOR TO SUCH  DEFENDANT'S  CRIMINAL  CONDUCT;
(C)  THAT  SUCH  DEFENDANT'S  CONTROLLED  SUBSTANCE  DEPENDENCE COULD BE
APPROPRIATELY ADDRESSED BY A SENTENCE OF  PAROLE  SUPERVISION;  AND  (D)
THAT  IMPOSITION  OF SUCH A SENTENCE WOULD NOT HAVE AN ADVERSE EFFECT ON
PUBLIC SAFETY OR PUBLIC CONFIDENCE IN  THE  INTEGRITY  OF  THE  CRIMINAL
JUSTICE  SYSTEM. IF THE COURT DIRECTS THAT A SENTENCE OF IMPRISONMENT BE
EXECUTED AS A SENTENCE  OF  PAROLE  SUPERVISION,  IT  SHALL  REMAND  THE
DEFENDANT  FOR  IMMEDIATE DELIVERY TO A RECEPTION CENTER OPERATED BY THE
DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, IN ACCORDANCE  WITH
SECTION 430.20 OF THE CRIMINAL PROCEDURE LAW AND SECTION SIX HUNDRED ONE
OF THE CORRECTION LAW, FOR A PERIOD NOT TO EXCEED TEN DAYS.  AN INDIVID-
UAL  WHO  RECEIVES  SUCH  A SENTENCE SHALL BE PLACED UNDER THE IMMEDIATE
SUPERVISION OF THE DEPARTMENT OF CORRECTIONS AND  COMMUNITY  SUPERVISION
AND  MUST  COMPLY  WITH THE CONDITIONS OF PAROLE, WHICH SHALL INCLUDE AN
INITIAL PLACEMENT IN A DRUG TREATMENT CAMPUS FOR A PERIOD OF NINETY DAYS
AT WHICH TIME THE DEFENDANT SHALL BE RELEASED THEREFROM.
  3. UPON DELIVERY OF THE DEFENDANT TO THE RECEPTION CENTER, HE  OR  SHE
SHALL BE GIVEN A COPY OF THE CONDITIONS OF PAROLE BY A REPRESENTATIVE OF
THE  DEPARTMENT  OF  CORRECTIONS  AND  COMMUNITY  SUPERVISION  AND SHALL
ACKNOWLEDGE RECEIPT OF A COPY OF THE CONDITIONS IN WRITING.  THE  CONDI-
TIONS  SHALL  BE  ESTABLISHED IN ACCORDANCE WITH ARTICLE TWELVE-B OF THE
EXECUTIVE LAW AND THE RULES AND REGULATIONS  OF  THE  BOARD  OF  PAROLE.
THEREAFTER, AND WHILE THE PAROLEE IS PARTICIPATING IN THE INTENSIVE DRUG
TREATMENT  PROGRAM PROVIDED AT THE DRUG TREATMENT CAMPUS, THE DEPARTMENT
OF CORRECTIONS AND COMMUNITY  SUPERVISION  SHALL  ASSESS  THE  PAROLEE'S
SPECIAL  NEEDS  AND  SHALL DEVELOP AN INTENSIVE PROGRAM OF PAROLE SUPER-
VISION THAT WILL ADDRESS THE PAROLEE'S SUBSTANCE ABUSE HISTORY AND WHICH
SHALL INCLUDE PERIODIC URINALYSIS TESTING.   UNLESS INAPPROPRIATE,  SUCH
PROGRAM  SHALL INCLUDE THE PROVISION OF TREATMENT SERVICES BY A COMMUNI-
TY-BASED SUBSTANCE ABUSE SERVICE PROVIDER WHICH HAS A CONTRACT WITH  THE
DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION.
  4. UPON COMPLETION OF THE DRUG TREATMENT PROGRAM AT THE DRUG TREATMENT
CAMPUS, A PAROLEE WILL BE FURNISHED WITH MONEY, CLOTHING AND TRANSPORTA-
TION  IN A MANNER CONSISTENT WITH SECTION ONE HUNDRED TWENTY-FIVE OF THE
CORRECTION LAW TO PERMIT THE PAROLEE'S TRAVEL FROM  THE  DRUG  TREATMENT
CAMPUS TO THE COUNTY IN WHICH THE PAROLEE'S SUPERVISION WILL CONTINUE.
  5. IF THE PAROLE OFFICER HAVING CHARGE OF A PERSON SENTENCED TO PAROLE
SUPERVISION  PURSUANT  TO  THIS  SECTION HAS REASONABLE CAUSE TO BELIEVE
THAT SUCH PERSON HAS VIOLATED THE CONDITIONS OF HIS OR HER  PAROLE,  THE
PROCEDURES  OF  SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF
THE EXECUTIVE LAW SHALL APPLY TO THE  ISSUANCE  OF  A  WARRANT  AND  THE
CONDUCT  OF  FURTHER  PROCEEDINGS;  PROVIDED,  HOWEVER,  THAT  A  PAROLE
VIOLATION WARRANT ISSUED FOR A VIOLATION COMMITTED WHILE THE PAROLEE  IS
BEING  SUPERVISED  AT A DRUG TREATMENT CAMPUS SHALL CONSTITUTE AUTHORITY
FOR THE IMMEDIATE PLACEMENT OF THE PAROLEE INTO A CORRECTIONAL  FACILITY
OPERATED  BY  THE  DEPARTMENT  OF CORRECTIONS AND COMMUNITY SUPERVISION,
WHICH TO THE EXTENT PRACTICABLE SHALL BE  REASONABLY  PROXIMATE  TO  THE
PLACE  AT  WHICH  THE VIOLATION OCCURRED, TO HOLD IN TEMPORARY DETENTION
PENDING COMPLETION OF THE PROCEDURES REQUIRED BY  SUBDIVISION  THREE  OF
SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW.
  S  4.  Subdivision  7 of section 70.06 of the penal law, as amended by
section 123 of subpart B of part C of chapter 62 of the laws of 2011, is
amended to read as follows:
  7. [Notwithstanding any other provision of  law,  in  the  case  of  a
person  sentenced  for  a  specified  offense  or offenses as defined in
subdivision five of section 410.91 of the criminal  procedure  law,  who

S. 7395                             4

stands convicted of no other felony offense, who has not previously been
convicted of either a violent felony offense as defined in section 70.02
of  this  article, a class A felony offense or a class B felony offense,
and is not under the jurisdiction of or awaiting delivery to the depart-
ment of corrections and community supervision, the] AS AUTHORIZED BY AND
IN  ACCORDANCE WITH SECTION 60.14 OF THIS TITLE, A court may direct that
[such] AN INDETERMINATE sentence OF  IMPRISONMENT  IMPOSED  PURSUANT  TO
THIS  SECTION  UPON A PERSON CONVICTED OF A CLASS D OR CLASS E FELONY be
executed as a parole supervision sentence [as defined in and pursuant to
the procedures prescribed in section 410.91 of  the  criminal  procedure
law].
  S 5. Paragraph (d) of subdivision 2 of section 70.70 of the penal law,
as added by section 23 of part AAA of chapter 56 of the laws of 2009, is
amended to read as follows:
  (d)  [The]  SENTENCE  OF  PAROLE  SUPERVISION. AS AUTHORIZED BY AND IN
ACCORDANCE WITH SECTION 60.14 OF THIS TITLE, A court may direct  that  a
determinate  sentence  imposed  PURSUANT  TO THIS SECTION on a defendant
convicted of a class B felony, other than the class B felony defined  in
section  220.48  of  this  chapter[,  pursuant  to this subdivision], be
executed as a sentence of parole supervision [in accordance with section
410.91 of the criminal procedure law].
  S 6. Paragraph (d) of subdivision 3 of section 70.70 of the penal law,
as amended by section 127-k of subpart B of part C of chapter 62 of  the
laws of 2011, is amended to read as follows:
  (d) Sentence of parole supervision. [In the case of a person sentenced
for  a  specified  offense or offenses as defined in subdivision five of
section 410.91 of the criminal procedure law, who stands convicted of no
other felony offense, who has not previously been convicted of either  a
violent  felony  offense  as defined in section 70.02 of this article, a
class A felony offense or a class B felony offense, and is not under the
jurisdiction of or awaiting delivery to the  department  of  corrections
and  community supervision, the] AS AUTHORIZED BY AND IN ACCORDANCE WITH
SECTION 60.14 OF THIS TITLE, A  court  may  direct  that  a  determinate
sentence  imposed  pursuant  to  this  subdivision [shall] UPON A PERSON
CONVICTED OF A CLASS C, CLASS D, OR CLASS E  FELONY  be  executed  as  a
parole  supervision  sentence  [as defined in and pursuant to the proce-
dures prescribed in section 410.91 of the criminal procedure law].
  S 7. Subdivision 4 of section 70.00 of the penal law,  as  amended  by
chapter 738 of the laws of 2004, is amended to read as follows:
  4.  Alternative definite sentence for CERTAIN CLASS C FELONIES AND FOR
class D and E felonies. When a person, other than a second or persistent
felony offender, is sentenced for a CLASS C FELONY OTHER THAN A CLASS  C
VIOLENT  FELONY  OFFENSE  DEFINED BY PARAGRAPH (B) OF SUBDIVISION ONE OF
SECTION 70.02 OF THIS ARTICLE OR A CLASS C FELONY LISTED IN  SUBDIVISION
FOUR OF SECTION 60.05 OF THIS TITLE, A class D FELONY or A class E felo-
ny,  and the court, having regard to the nature and circumstances of the
crime and to the history and character of the defendant, is of the opin-
ion that a sentence of imprisonment is necessary but that  it  would  be
unduly  harsh  to  impose  an indeterminate or determinate sentence, the
court may impose a definite sentence of imprisonment and fix a  term  of
one year or less.
  S 8. Paragraph (c) of subdivision 3 of section 70.02 of the penal law,
as  amended  by  chapter  765 of the laws of 2005, is amended to read as
follows:
  (c) For a class D felony, the term must be  at  least  [two]  ONE  AND
ONE-HALF  years and must not exceed seven years, provided, however, that

S. 7395                             5

the term must be at least two years and  must  not  exceed  eight  years
where  the  sentence  is  for  the crime of menacing a police officer or
peace officer as defined in section 120.18 of this chapter; and
  S  9.  Subdivision  3 of section 70.08 of the penal law, as amended by
section 7 of chapter 107 of the laws of 2006, is amended by adding a new
paragraph (d) to read as follows:
  (D) FOR A CLASS E FELONY THE MINIMUM PERIOD MUST  BE  AT  LEAST  THREE
YEARS AND MUST NOT EXCEED TWENTY-FIVE YEARS.
  S  10.  Subdivision 3 of section 70.08 of the penal law, as amended by
section 8 of chapter 107 of the laws of 2006, is amended by adding a new
paragraph (d) to read as follows:
  (D) FOR A CLASS E FELONY THE MINIMUM PERIOD MUST  BE  AT  LEAST  THREE
YEARS AND MUST NOT EXCEED TWENTY-FIVE YEARS.
  S  11.  Subdivision 2 of section 70.10 of the penal law, as amended by
chapter 7 of the laws of 2007, is amended to read as follows:
  2. Authorized sentence. When the court  has  found,  pursuant  to  the
provisions  of the criminal procedure law, that a person is a persistent
felony offender, and when it is of the  opinion  that  the  history  and
character  of  the  defendant and the nature and circumstances of his OR
HER criminal conduct indicate that extended incarceration and  life-time
supervision  will  best serve the public interest, the court, in lieu of
imposing the sentence  of  imprisonment  authorized  by  section  70.00,
70.02, 70.04, 70.06 or subdivision five of section 70.80 OF THIS ARTICLE
for  the  crime  of  which  such  person presently stands convicted, may
impose [the sentence of imprisonment authorized by that  section  for  a
class A-I felony] AN INDETERMINATE SENTENCE OF IMPRISONMENT. THE MAXIMUM
TERM  OF THE INDETERMINATE SENTENCE OF IMPRISONMENT SHALL BE LIFE IMPRI-
SONMENT, AND THE MINIMUM PERIOD OF  IMPRISONMENT  OF  THE  INDETERMINATE
SENTENCE  SHALL BE FIXED BY THE COURT AT NOT LESS THAN FIFTEEN YEARS NOR
MORE THAN TWENTY-FIVE YEARS.  In such event the reasons for the  court's
opinion shall be set forth in the record.
  S  12.  Subdivision  4 of section 485.10 of the penal law, as added by
chapter 107 of the laws of 2000, is amended to read as follows:
  4. Notwithstanding any other  provision  of  law,  when  a  person  is
convicted  of  a hate crime [pursuant to this article] and the specified
offense is a class A-1 felony, THE SENTENCE SHALL BE AS  AUTHORIZED  FOR
THAT  CLASS A-1 FELONY; PROVIDED, HOWEVER, IF THE AUTHORIZED SENTENCE IS
OR INCLUDES AN INDETERMINATE SENTENCE  OF  IMPRISONMENT,  OTHER  THAN  A
SENTENCE  OF LIFE IMPRISONMENT WITHOUT PAROLE, the minimum period of the
indeterminate sentence shall be not less than twenty years.
  S 13. Subparagraph (ii) of paragraph (d) of subdivision 5  of  section
220.10  of  the  criminal  procedure law, as added by chapter 233 of the
laws of 1980, is amended to read as follows:
  (ii) Except as provided in subparagraph (i) of this  paragraph,  where
the  indictment  charges  a  class B violent felony offense or a class C
violent felony offense, then a plea of guilty must include  at  least  a
plea of guilty to a class D violent felony offense; EXCEPT, IF THE CLASS
B VIOLENT FELONY OFFENSE WAS MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED
IN  SECTION  125.20  OF THE PENAL LAW, THEN THE PLEA OF GUILTY MAY BE TO
THE CLASS C FELONY OF MANSLAUGHTER IN THE SECOND DEGREE  AS  DEFINED  IN
SECTION 125.15 OF THE PENAL LAW IN LIEU OF A PLEA OF GUILTY TO A CLASS D
VIOLENT FELONY OFFENSE;
  S  14.  Subparagraph (iv) of paragraph (b) of subdivision 3 of section
220.30 of the criminal procedure law, as added by  chapter  233  of  the
laws of 1980, is amended to read as follows:

S. 7395                             6

  (iv)  Except  as  provided  in subparagraph (iii) of this paragraph, a
plea of guilty, whether to the entire indictment or part of the  indict-
ment,  for  any  crime other than a class A felony or a class B, C, or D
violent felony offense as defined in subdivision one of section 70.02 of
the  penal law, may not be accepted on the condition that it constitutes
a complete disposition of one or  more  other  indictments  against  the
defendant wherein is charged a class B or class C violent felony offense
as defined in subdivision one of section 70.02 of the penal law; EXCEPT,
IF  THE  CLASS  B  VIOLENT  FELONY OFFENSE WAS MANSLAUGHTER IN THE FIRST
DEGREE AS DEFINED IN SECTION 125.20 OF THE PENAL LAW, THEN THE  PLEA  OF
GUILTY MAY BE TO THE CLASS C FELONY OF MANSLAUGHTER IN THE SECOND DEGREE
AS DEFINED IN SECTION 125.15 OF THE PENAL LAW IN LIEU OF A PLEA OF GUIL-
TY TO A CLASS C OR D VIOLENT FELONY OFFENSE.
  S  15.  Paragraph  (a)  of subdivision 4 of section 70.20 of the penal
law, as amended by section 124 of subpart B of part C of chapter  62  of
the laws of 2011, is amended to read as follows:
  (a)  Notwithstanding  any  other  provision  of law to the contrary, a
juvenile offender, or a juvenile offender who is adjudicated a  youthful
offender and given an indeterminate, DETERMINATE or a definite sentence,
shall  be  committed to the custody of the commissioner of the office of
children and family services who shall arrange for  the  confinement  of
such  offender in secure facilities of the office. The release or trans-
fer of such offenders from the office of children  and  family  services
shall be governed by section five hundred eight of the executive law.
  S  16. This act shall take effect immediately; provided, however, that
this act shall apply to offenses committed on or  after  such  effective
date;  and  provided  further,  that  the amendments to subdivision 7 of
section 70.06 of the penal law made by section four of  this  act  shall
not  affect  the repeal of such subdivision and shall be deemed repealed
therewith; and provided further, that the amendments to subdivision 3 of
section 70.08 of the penal law made by section nine of this act shall be
subject to the expiration and reversion of such subdivision pursuant  to
subdivision  d  of  section  74  of  chapter  3  of the laws of 1995, as
amended, when upon such date the provisions of section ten of  this  act
shall take effect.

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Senate Bill S7395

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Sponsored By

Stephen M. Saland

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2011-S7395 (ACTIVE) - Details

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